Kerala High Court
Hameed vs The State Of Kerala on 8 November, 2012
Author: S. Siri Jagan
Bench: S. Siri Jagan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE S. SIRI JAGAN
THURSDAY, THE 8TH DAY OF NOVEMBER 2012/17TH KARTHIKA 1934
Crl. Rev. Pet. No. 759 of 2001 ( )
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CRA.143/1997 of D.C. & SESSIONS COURT,KOZHIKODE
SC.16/1997 of PRL.SUB COURT, KOZHIKODE
REVISION PETITIONERS/APPELLANTS A2 &A3:
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1. HAMEED, S/O. MOIDU, AGED 34 YEARS,
KUNHIPARAMBATH VEEDU, IYYAMKODE AMSOM,
DESOM, VADAKARA, KOZHIKODE.
2. MOHAMMED ALI, S/O. SOOPY,
AGED 23 YEARS PARAVATH VEEDU,
IYYAMKODE AMSOM, DESOM,
VADAKARA TALUK, KOZHIKODE.
BY ADV. SRI. K.K. JAYARAJ NAMBIAR
RESPONDENT/RESPONDENT/COMPLAINANT:
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THE STATE OF KERALA
REPRESENTED BY CIRCLE INSPECTOR OF POLICE,
NADAPURAM.
BY PUBLIC PROSECUTOR SRI. BIJU MEENATTOOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
08-11-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
sp
S.SIRI JAGAN,J.
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Crl.R.P. No. 759 of 2001
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Dated this the 8th day of November, 2012
O R D E R
Counsel for the petitioners is absent. Therefore, I am constrained to decide this case, after hearing the Public Prosecutor and perusing the Judgments and records of the lower courts.
2. The petitioners in this Revision Petition are the accused Nos.2 and 3 in Session's Case No. 16/1997 before the Sessions Court Kozhikode Division.
3. He was prosecuted for offences punishable under Sections 354, 366A and Section 376 read with Section 34 of the Indian Penal Code along with another accused. The prosecution case in brief was as follows:
4. PW2, Sara, aged 15 years and 5 months was employed as a maid servant in the house of PW1 at Nadapuram from May 1995, on a monthly salary of Rs.600/-, to look after the children of PW1. PW1's wife was in an advanced stage of pregnancy. On 20.7.1995, PW1's Crl.R.P. No. 759 of 2001 2 wife was admitted to Unity Health Center, Tellichery, for delivery and at that time PW1's mother-in-law also came to the house of PW1 to look after PW1's younger children. On 6.6.1995 at 3 p.m, the accused in further of their common intention of seducing PW12 for illicit sexual intercourse, induced PW12 to leave the house of PW1 making her believe that she will be accommodated as maid servant in another house on a better salary and took PW12, in an Autorikshaw bearing Registration No. KL-11 C 0477 driven by the 1st accused Ismail, to the house of PW3 Mariam at Iyyamkode and on the next day, namely 7.6.95, at about 10 a.m., accused No. 1 to 3 took PW12 in the same Autorikshaw to a room in a house building under construction, at Valayannnur Amsom, from where accused No.1 forcibly removed her dress and accused Nos.1 and 2 committed rape on PW12 one after other, Accused No.3 with intend to outrage her modesty touched her private parts and fondled her breast and after the incident at about 1 p.m on the same day they Crl.R.P. No. 759 of 2001 3 took PW12 in the same autorikshaw to Thottathil Palam bus stand, from where PW12 boarded a bus to her house at Wayand on the same day at 6 p.m. PW12 narrated the incidents to her mother and the next day morning, she, accompanied by her father, went to the Nadapuram Police Station and narrated the incident to the Police, which was recorded by PW18 A.S.I of Nadapuram Police Station at 2.30pm on 9.6.1995. On the basis of the said statement, a crime was registered under Sections 366(A), 354, 376 read with Section 34 of the Indian Penal Code, on the basis of which, charge sheet was laid against the accused. The first accused was absconding. Therefore, the case was proceeded against accused Nos.2 and 3.
5. The prosecution examined PW1 to PW21 and marked Exhibits P1 to P30 as also MOs1 to 4. The defence did not adduce any oral evidence, but got Exhibits D1 to D3(c) marked. After considering the evidence adduced, the Assistant Sessions Judge, Vadakara convicted the accused Crl.R.P. No. 759 of 2001 4 and sentenced them as follows:
"Accused are found guilty and Accused No.2, Hameed is sentenced to undergo R.I. for 3 years (three) and also to pay a fine of Rs.5000/- in default undergo S.I.for 1(one) year u/s.366A r/w.34 IPC and u/s. 376 IPC he is sentenced to undergo R.I.for 7(seven) years and also to pay a fine of Rs.15000/- in default of payment of fine to undergo S.I. for 3(three) years. Accused No.3, Muhammed Ali is sentenced to undergo R.I. for 3 (three) years and also to pay a fine of Rs.5000/- in default of payment of fine to undergo S.I for 1 (one) year u/s. 366A r/w.34 IPC and u/s.354 IPC he is sentenced to undergo R.I. for (two) years and also to pay a fine of Rs.2,000/- in default of fine to undergo S.I. for 6(six) months. Both the substantive sentence imposed on accused Nos.2 and 3 are made concurrent and the period undergone in remand if any will be set off against the sentence imposed. when fine amount is realised, Rs.25000/- will be paid as compensation to PW.12 who is the victim."
6. The two accused filed Criminal Appeal No. 143/1997 before the Sessions Court Kozhikode. The Sessions Court acquitted the accused of the offences punishable under Sections 376 and 354 read with Section 34 of the Indian Penal Code, but confirmed the conviction and sentence under Section 366A read with Section 34 of the Indian Penal Code.
Crl.R.P. No. 759 of 2001 5
7. The petitioners are challenging the said Judgments. According to the petitioners, there is no reliable evidence to convict the petitioners under Section 366A.
8. The learned Public Prosecutor would contend that the deposition of the prosecution witnesses are sufficient to come to the conclusion that the petitioners are guilty of offence under Section 366A.
9. I have considered the rival contentions in detail. For deciding this question, I am of opinion that we should consider Sections 376, 354 and 366A together . Section 376 reads thus:
" Punishment for rape.- (1) Whoever, except in the cases provided for by sub-section (2), commits rape shall be punished with imprisonment of either description for a term which shall not be less than seven years but which may be for life or for a term which may extend to ten years and shall also be liable to fine unless the women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished with imprisonment of either description for a term which may extend to two years or with fine or with both:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment for a term of less than seven Crl.R.P. No. 759 of 2001 6 years.
(2) Whoever,-
(a) being a police officer commits rape-
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station to which he is appointed; or
(iii) on a woman in his custody or in the custody of a police officer subordinate to him; or
(b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a woman's or children's institution takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or
(d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant;
or
(f) commits rape on a woman when she is under twelve
years of age; or
(g) commits gang rape,
shall be punished with rigorous imprisonment for a term which shall not be less than ten years but which may be for life and shall also be liable to fine:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of either description for a term of less than ten years.Crl.R.P. No. 759 of 2001 7
Section 354 reads thus:
"Assault or criminal force to woman with intent to outrage her modesty.-Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."
Section 366A reads thus:
"Procuration of minor girl.-Whoever, by any means whatsoever, induces any minor girl under the age of eighteen years to go from any place or to do any act with intent that such girl may be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall be punishable with imprisonment which may extend to ten years, and shall also be liable to fine. "
The Sessions court has acquitted the petitioners of the offences under sections 376 and Section 354. In the absence of any appeal by the state against the acquittal under Sections 376 and Section 354, I cannot now consider the question whether, they are guilty of those offences. But I am of opinion that when the petitioners have been acquitted of the offences under Section 376 and Section 354, on the evidence available, the petitioners could not Crl.R.P. No. 759 of 2001 8 have been convicted under Section 366A. The prosecution has to prove that the petitioners had induced Sara, who is admittedly a minor, to go from the house of PW1 to do any act with intent that Sara may be or knowing that it is likely that, Sara will be forced or seduced to undergo illicit intercourse with another person. The Sessions Court has found that, there is no conclusive evidence to show that Sara had undergone sexual intercourse at the hands of anybody. While that decision stands, I am unable to pursuade myself to hold that petitioners are guilty of an offence under Section 366A. Since the prosecution has not proved that they or anybody else have Sexual intercourse with Sara, I am unable to hold that the petitioners had induced her to go from PW1's house with intend that Sara may be or knowing that it is likely that Sara will be forced or seduced to undergo illicit intercourse. At the least, the petitioners are entitled to the benefit of doubt in respect of the same.
Crl.R.P. No. 759 of 2001 9
11. In the above circumstances, the Judgments of the courts below are set aside and the petitioners are acquitted of the offence under Section 366A also, giving them the benefit of doubt.
The Crl.Revision Petition is allowed as above.
Sd/-
S.SIRIJAGAN, JUDGE jm